2007-893, LAWRENCE J. DUPONT v. NH REAL ESTATE COMMISSION

RSA 331-A:4 exempt him from the Act’s requirements.

(2004). We affirm.

ch. 331-A (2004 & Supp. 2007). Dupont argues that paragraphs I and VII of connection with a sales agreement involving a manufactured home. See RSA provisions of the New Hampshire Real Estate Practice Act (the Act) in Hampshire Real Estate Commission (commission), sanctioning him for violating Superior Court (Smukler, J.) upholding a decision of the respondent, New HICKS, J. The petitioner, Lawrence J. Dupont, appeals an order of the

general, on the memorandum of law and orally), for the respondent. Kelly A. Ayotte, attorney general (Danielle L. Pacik, assistant attorney

brief and orally), for the petitioner. to press. Errors may be reported by E-mail at the following address: Normandin, Cheney & O’Neil, PLLC, of Laconia (James F. Lafrance on the

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2007-893 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Belknap Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as agree that the phrase “shall not” indicates a mandatory command,

p. 2 RSA 331-A:4, VII. RSA 331-A:4. He argues that he is exempt under both RSA 331-A:4, I, and is whether or not Dupont is within a class of exempted persons listed under

returned but Dupont refused. because of a fire safety issue. They immediately requested that the deposit be by Dupont’s son that a 10’ x 12’ deck could not be added to the property 2 listed, and that whether a person is exempt is not discretionary. While we

A:4, the “shall not apply” language is irrelevant. The issue before us, therefore,

the superior court, which affirmed. which he deposited in his only escrow account. The Mills were later informed accredited pre-licensing course. Dupont appealed the commission’s decision to commission ordered Dupont to pay $3,000 in disciplinary fines and enroll in an mandatory command that the Act “shall not apply” to those classes of persons

the Act’s requirements.

Unless Dupont falls within one of the classes of persons described in RSA 331of Rowan, 142 N.H. 67, 71 (1997), this neither ends nor aids our analysis.

statement, the Mills provided a non-refundable $10,000 deposit to Dupont, that his company would be able to construct the deck. Relying upon this escrow and by making false statements that induced the Mills to act. The initial matter, we note that Dupont argues that RSA 331-A:4 contains a obtained a valid permit from the Town of Belmont. Additionally, Dupont stated RSA 331-A:4 provides a list of exempted classes from the Act. As an

V and VII (2004) because RSA 331-A:4 (2004) provides that he is exempt from sanctioned for violating RSA 331-A:13, IV (Supp. 2007) and RSA 331-A:26, IV, On appeal, Dupont argues that the court erred in ruling that he could be

violated various provisions of the Act by withdrawing security funds placed in the Mills that they could “absolutely” construct a 10’ x 12’ deck as long as they manufactured home. Following a hearing, the commission ruled that Dupont against Dupont alleging misrepresentations concerning the sale of a On May 26, 2006, the Mills filed a complaint with the commission

1968, until June 26, 2005.

agreement with Dupont for the sale of a manufactured home. Dupont assured On March 10, 2005, Lawrence and Beverly Mills entered into a written

licensed as a real estate broker in the State of New Hampshire from June 26, location, he sells manufactured homes and rents lots. Dupont was also actively owner and operator of Pine Gardens Mobile Home Park in Belmont. At this record. Dupont is president of Pine Gardens Manufactured Homes, Inc. and The following facts were found by the trial court or are supported by the p. 3 Act:

example, RSA 331-A:26, III provides that the following acts are subject to the

scope of the real estate transaction, yet are subject to disciplinary action. For provided in RSA 331-A:28; many of the acts undoubtedly fall outside of the A:26 (Supp. 2007) identifies certain acts subject to disciplinary action as

particular real estate transaction. RSA 331-A:28 (2004). In addition, RSA 331-

money under false pretenses, bribery, larceny, extortion,

The statute does not specify that the transaction must occur during a account or in the capacity as broker or salesperson.” RSA 331-A:28, I (2004). salesperson, regardless of whether the transaction was for the person’s own other state, or federal court, of forgery, embezzlement, obtaining

salesperson. such manufactured housing without a license of a broker or valuable consideration, list, sell, purchase, exchange or lease

from the Act. It does not exempt a

business or acting in the capacity of a real estate broker or real estate Being convicted in a court of competent jurisdiction of this or any

license. leased is located, who may, for a fee or commission or other

operating a manufactured housing park without a broker license are exempt

license for this particular transaction, he is exempt under RSA 331-A:4, VII. “[t]he commission may investigate the actions of any person engaged in the Realty, Inc. v. Albin, 131 N.H. 689, 692 (1989). RSA 331-A:28, I, provides that system for regulating real estate sales and brokerage practices.” Suburban Construed as a whole, “RSA chapter 331-A establishes a comprehensive

he participates in a transaction that does not require a person to hold a broker regular employees, in which manufactured housing to be sold or licensed real estate broker simply because

The plain language of the statute provides that only persons owning or

RSA 331-A:4, VII. Dupont argues that because he did not need a real estate said nor add words that it did not see fit to include.”

Any person owning or operating a park, including the person’s

RSA 331-A:4, VII states that the provisions of the Act shall not apply to:

Properties v. Town of Hudson, 148 N.H. 769, 771 (2002).

construing a statute, we will neither consider what the legislature might have not in isolation.” Mortgage Specialists v. Davey, 153 N.H. 764, 774 (2006). “In meanings, and interpret it in the context of the overall legislative scheme and language of the statute, ascribing to its words their plain and ordinary novo. In re Toyota Avalon, 155 N.H. 720, 721 (2007). We will “examine the The interpretation of a statute is a question of law, which we review de are deemed waived.

p. 4 in the notice of appeal. As a result, the issues were not properly preserved and

to address both arguments, however, because these issues were also not raised fiduciary relationship exists between the parties to this transaction. We decline are premised upon the existence of a fiduciary relationship, whereas no

that the prohibitions in RSA 331-A:13 (Supp. 2007) and RSA 331-A:26 (2004)

the commission.

acquired or leased by the purchaser or tenant. BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.

Dupont is not exempt under RSA 331-A:4, VII and was lawfully sanctioned by For the foregoing reasons, we agree with the trial court’s conclusion that Dupont failed to raise the issue in his notice of appeal.

RSA 331-A:4, VII because he was a licensed real estate broker at the time of transaction.” We agree. Accordingly, Dupont is not exempt from the Act under or to regular employees with respect to property sought to be

Finally, Dupont presents two additional arguments. He argues that the provisions of the Act shall not apply to: N.H. 313, 315 (2000).

RSA 331-A:4, I. We decline to consider this argument, however, because

conduct, regardless of whether or not it directly affects a particular real estate or tenant, or to a prospective purchaser or tenant of real estate with respect to property owned or leased by the owner, builder, An owner, builder or tenant of real estate or to regular employees

exempt from the Act pursuant to RSA 331-A:4, I. RSA 331-A:4, I, provides that Next, Dupont argues that he is an owner of real estate and therefore

the Act provides that “real estate agents and brokers are held to a standard of RSA 331-A:26, III (Supp. 2007). The trial court found that the plain meaning of

arson, physical violence, or any similar offense or offenses . . . . conspiracy to defraud, sexual crimes, drug distribution,